NYU Law faculty, alumni, and students are helping drive changes across the criminal justice system—often with an eye on racial inequities.
By Michael Orey
Illustration by Michael Bierman
Picture this: A police officer in Indianapolis responds to a call about a man who is acting strangely. The man is disheveled, he has broken a mirror off a parked car, and, when the officer arrives, he is urinating in the street. Guided by an application on his cell phone, the officer begins asking the man a series of questions to determine if he might be mentally ill, abusing substances, or homeless. These three often overlapping conditions pave a path for many individuals into the criminal justice system. But Indianapolis is committed to redirecting a significant number of them elsewhere, and after conducting his evaluation, the police officer decides to take the man to a city-run center, where specialists will determine the best course of “diversion.”
At the moment, this sequence of events is just a vision, but Professor of Practice and Distinguished Scholar in Residence Anne Milgram ’96 is working to make it a reality. Milgram, who served as attorney general of New Jersey from 2007 to 2010, conceived of the screening tool and secured funding for its development. Through her newly formed Criminal Justice Lab at NYU Law, she’s working with law enforcement and city officials in Indianapolis to put it in police officers’ hands by 2019. “It’s critical for people to be diverted at the earliest point possible,” says Milgram. “Once someone ends up in the criminal justice system, the chances of a good outcome—for the individual and for society—drop dramatically.”
Travel next to Comal County, Texas, just outside San Antonio, where indigent state court criminal defendants have an option unavailable to most of their counterparts around the country: selecting their own government-funded attorney from a list, rather than simply having one appointed for them. The “client choice” program aims to improve indigent defense, in part by incentivizing lawyers to compete for clients and build repeat business by offering the best representation. The approach is based on ideas initially proposed by Robert B. McKay Professor of Law Stephen Schulhofer, who worked with Texas officials to implement the plan in 2015. An evaluation by the nonprofit Justice Management Institute found that about 72 percent of Comal County defendants opted for client choice, and that they had significantly better outcomes in both plea deals and sentences.
Now imagine a parolee in New York City. He’s landed a job with a shift that ends at 9:00 p.m., allowing time for him to get home to meet his 10:00 p.m. curfew—a common condition of parole. But one evening, due to subway delays, he gets home late, which puts him at risk of having his parole revoked. To Professor of Clinical Law Anthony Thompson, reincarcerating people for this kind of technical violation is “just another way to confound an individual’s ability to reenter society.” As co-chair of the New York State Council on Community Re-Entry and Reintegration, he’s working to get the state’s parole board to change its rules.
Across the country, and along the entire arc of the criminal justice process, NYU Law faculty, students, and alumni are working in myriad ways—through clinics, centers and projects, nonprofits, and government service—to implement reform. (For a closer look at some of the initiatives that have been undertaken, see accompanying sidebars.)
The need is acute. “The US criminal justice system,” Milgram says bluntly, “is broken.” Just consider some numbers. With around 2.2 million people behind bars, the United States has the highest incarceration rate in the world. Close to half a million of those detained have not even been convicted and are still awaiting trial. About 75 percent of individuals released from state prisons are rearrested within five years; nearly 80 million Americans— close to one in four—have criminal records (which include arrests as well as convictions).
These statistics raise a host of concerns. A system this size is expensive to run—federal, state, and local expenditures on police, courts, and incarceration exceed $280 billion per year—and looking at the recidivism rate alone, it can hardly be deemed effective. The system also imposes an enormous social cost. Families are fractured, communities hollowed out. Those incarcerated, meantime, are dehumanized, often brutalized, and, upon release, are more likely to emerge hardened than rehabilitated.
As other figures show, these social costs are not borne equally: African Americans are incarcerated at a rate five times greater than whites, and despite composing just 13 percent of US residents, blacks make up 40 percent of the prison population. What’s more, an accumulating number of studies have documented racial disparities across the entire span of the criminal justice system: Compared to whites, blacks face far higher arrest rates, steeper bail, less favorable plea deals, and longer sentences. In murder cases, the death penalty is imposed more frequently if a defendant is black or the victim white, or both. [Sources for statistics include Equal Justice Initiative, Prison Policy Initiative, The Sentencing Project, USA Today, US Department of Justice, US Government Accounting Office, US Sentencing Commission, and various academic studies.]
In recent years, a string of police killings of unarmed black men, along with the rise of Black Lives Matter, has drawn high-profile attention to these disparities and prompted calls for broad-scale reform. Among the steps the Law School took in response to these developments was the formation in 2017 of the Center on Race, Inequality, and the Law, with seasoned experts in racial justice and criminal law at its helm: Thompson, as faculty director, and Vincent Southerland, who is the executive director.
A spectrum of liberal and conservative groups and politicians has also embraced criminal justice reform in recent years, with a variety of motivations—increasing fairness, improving effectiveness, or reducing cost. The Open Society Foundations and the Charles Koch Foundation have supported a number of criminal justice initiatives at the Law School; both help fund the Policing Project, founded and directed by Jacob D. Fuchsberg Professor of Law Barry Friedman, which works with law enforcement and communities to develop democratic accountability in policing.
While hopes for reform have hit headwinds with the Trump administration’s avowed “tough on crime” policies, criminal justice operates mostly at the state and local levels, where in many areas commitment to change continues. In recent years, voters in places such as Baltimore, Chicago, Houston, and Philadelphia have elected reform-minded district attorneys. Those ranks also included Brooklyn District Attorney Kenneth Thompson ’92 (profiled in this magazine in 2015), who died in office at the age of 50.
“The national political scene has caught up to the idea that criminal justice reform is more urgent, but the Law School has had people in the trenches who’ve been doing this for a while,” says Rachel Barkow, vice dean and Segal Family Professor of Regulatory Law and Policy. That’s part of what led her to join the faculty in 2002, she notes.
Indeed, the reform work under way now rests on a deep foundation of pioneering scholarship and advocacy at the Law School. When Barkow arrived, for example, James Jacobs was an influential and well-recognized scholar in areas including prison reform, organized crime, and gun control. Now Chief Justice Warren E. Burger Professor of Constitutional Law and the Courts, he continues to write extensively on gun control, including a piece last year on 3-D-printed firearms and the Second Amendment.
David Garland, now Arthur T. Vanderbilt Professor of Law, organized a major conference at the Law School in 2000 on “mass imprisonment,” a term he is credited with coining, and which both linguistically and conceptually prefigured today’s formulation, “mass incarceration.” In 2010, Garland published Peculiar Institution: America’s Death Penalty in an Age of Abolition, a highly acclaimed book that provides new insights into the origins and persistence of capital punishment in the US. And Stephen Schulhofer’s 1998 book, Unwanted Sex: The Culture of Intimidation and the Failure of Law, remains a canonical work that helped change attitudes and laws about sexual assault. Currently, Schulhofer serves as reporter for the American Law Institute’s project to reexamine the Model Penal Code’s provision on sexual assault—last revised in 1962. Professor of Law Erin Murphy is the project’s associate reporter.
Beyond representing individual clients, the Law School’s extensive clinical programs have also effected significant legal change. University Professor Emeritus Anthony Amsterdam, Fiorello LaGuardia Professor of Clinical Law Martin Guggenheim ’71, Vice Dean and Director of Clinical Programs Randy Hertz, and Professor of Clinical Law Bryan Stevenson have blazed trails in the courts, most notably in death penalty cases and juvenile defense. And Professor of Clinical Law Claudia Angelos has long litigated prisoner rights and prison reform cases.
The in-the-trenches work of reform often focuses on discrete stages of criminal justice. Some examples include Friedman’s Policing Project or Barkow's government service and scholarship in the area of sentencing.
But there are institutional actors and issues that cut across the system, and they draw attention as well. Barkow is founder and faculty director of the Center on the Administration of Criminal Law, which recently produced a best-practices guide for prosecutors that encourages them to consider “how prosecutorial discretion at various stages of a criminal case can impact defendants’ risk of recidivism and affect their re-entry process.” At the “front end,” for example, prosecutors can support pretrial release, when appropriate—studies show that pretrial detention can increase the likelihood a defendant will reoffend—and at the “back end” they can assist with things like job training and reinstating driver's licenses.
“If you are in the overall business of criminal justice, then you have to care about all of these issues,” says Preet Bharara, former US attorney for the Southern District of New York, who joined the Law School in 2017 as a distinguished scholar in residence and an adjunct professor.
The same holds true on the defense side. For years, Anthony Thompson and Professor of Clinical Law Kim Taylor-Thompson taught separate clinics on criminal defense and on offender reentry, but a few years ago, they combined them. “We realized that teaching about reentry needed to be woven into the fabric of representation from the beginning and would lead to better outcomes for clients,” Anthony Thompson explains.
There is a still-bigger-picture take. Vindicating rights in the courts or seeking political change is vitally important, says Stevenson, who has done much of that through the Equal Justice Initiative (EJI) that he founded and directs. But, he says, there is also a “narrative battle” to be won in society at large.
“We have to have a broader conversation about why we have become so punitive, why we tolerate so much bigotry and bias against people of color,” he says in an interview. Mass incarceration, Stevenson says, grew out of a “paradigm shift” in an approach to law enforcement in the 1970s that was rooted in a history of racial inequality—slavery, Jim Crow laws, lynching, segregation, and discrimination. As a result of this legacy, people of color are disproportionately marginalized, disadvantaged, and mistreated, and within the criminal justice system, they must contend with presumptions of dangerousness and guilt.
“The way we punish can’t be understood without understanding the underlying narrative,” Stevenson says. And to present that narrative, he and EJI opened the Legacy Museum and a lynching memorial near EJI’s offices in Montgomery, Alabama, in April. His goal now, Stevenson says, is to bring conversations about racial history, politics, and justice to communities around the country. “That’s when you begin to see policies change and reform happening in ways that can make all the difference,” he says.
The Metropolitan Nashville Police Department (MNPD), like many police departments around the country, considers “proactive traffic stops” to be a key crime-fighting tool. Particularly in high-crime areas, police officers in patrol cars keep an eye out for vehicles with minor traffic violations—a broken taillight, for example—and pull them over. The officers then can “look beyond the stop,” peering into the car for drugs or other evidence of criminal activity, and check for outstanding arrest warrants for the driver.
Is this effective? The MNPD and the Nashville mayor’s office have asked NYU Law’s Policing Project to conduct a pioneering cost-benefit analysis of the tactic, assessing not only whether it reduces crime but whether alternative methods might reduce any costs imposed, such as the impact on community trust and on the individuals who are stopped. Gideon’s Army, a local community group, has said the MNPD stops disproportionately target African Americans and constitute racial profiling. The Policing Project is also deploying cost-benefit analysis to evaluate vehicle pursuit policies in Roanoke, Virginia; de-escalation training in Asheville, North Carolina; and gunshot detection technology in St. Louis, in partnership with police departments in those cities. “For too long, cost-benefit analysis, a critical tool in the rest of government, has been neglected around policing,” says the Policing Project’s director, Professor Barry Friedman. “Yet if we are going to be safe, and do so while minimizing the costs imposed on individuals and communities by policing, this sort of analysis is critical.”
Adjunct Professor Peter Zimroth serves as the court-appointed monitor overseeing New York City Police Department (NYPD) changes to its stop-and-frisk practices, which a court found to be racially biased.
“There is nothing more important than a police officer’s experience and intuition, but there is also no doubt that we could give officers far better tools to fight crime and improve the lives of the people they serve,” says Professor of Practice Anne Milgram ’96.
Associate Professor of Clinical Law Deborah Archer was a member of the New York City Civilian Complaint Review Board from 2014 to 2017.
If you want to understand factors driving mass incarceration, take a look at prosecutors, suggests Professor of Clincal Law Claudia Angelos. They are, she says, “the most powerful, unaccountable, and least transparent actors in the criminal justice system.” In addition to playing critical roles at many stages—from charging to bail to pleas to sentencing—prosecutors often have incentives that drive a “mass-incarceration mindset,” Angelos says. One example: job promotions that may be based largely on conviction rates.
With that in mind, Angelos and Adjunct Professor Molly Louise Kovel are teaching a new clinic this fall in which a major focus will be prosecutorial reform. Working with the American Civil Liberties Union, where Kovel is a senior staff attorney, students in Civil Rights Clinic: Challenging Mass Incarceration will participate in litigation, legislative advocacy, and other efforts to drive systemic reform.
Others at the Law School are engaging directly with prosecutors. Professor Rachel Barkow, through her Center on the Administration of Criminal Law, has brought together prosecutors and policy leaders to discuss topics such as mental health reforms in the criminal justice system and how prosecutors can facilitate reentry and reduce recidivism. Professor of Clinical Law Anthony Thompson has begun consulting with recently elected, reform-minded district attorneys who are attempting to change the culture of their offices.
Advising Brooklyn's DA
In January, Brooklyn District Attorney Eric Gonzalez appointed a committee to advise him on criminal justice reform. Among NYU Law alumni on the committee are co-chair Jonathan Lippman ’68 (far left), former chief judge of the New York Court of Appeals, now of counsel at Latham & Watkins, and Debo Adegbile ’94, a partner at Wilmer Cutler Pickering Hale and Dorr, a commissioner on the US Commission on Civil Rights, and a Law School trustee.
Former US Attorney Preet Bharara, a distinguished scholar in residence at NYU Law, teaches an Elements of Criminal Justice seminar that is “concerned with justice and how to achieve it in criminal prosecutions.”
Sidebar: Juvenile Justice
One might not expect to find work by legal academics in Developmental Cognitive Neuroscience, but in an article published by the journal last year, Professor of Clinical Law Kim Taylor-Thompson shared authorship with a dozen neuroscientists and psychologists. The topic was “brain age” and the propensity to engage in risky behavior, with an eye to the legal system, where, the article states, “decisions regarding the criminal culpability of juveniles remain in flux.”
The question of what age to set for trying individuals as adults has been a major focus for Taylor-Thompson in recent years. States currently allow children under 17 or 18 to have their cases handled in the juvenile justice system, but all have exceptions that permit or require young defendants to be prosecuted as adults. Taylor-Thompson thinks that no one under 17 should be transferred out of the juvenile justice system, and based on emerging brain development research, she thinks that the age of criminal culpability should actually be 21 or even higher.
As with so many other areas in criminal justice, glaring racial disparities remain to be addressed, Taylor-Thompson notes. Even though recent US Supreme Court rulings have recognized that children are developmentally different, and that the judicial system should treat them differently, “the problem is, it doesn’t happen when you’re talking about kids of color,” she says. Various studies have shown that black juveniles are transferred to adult courts at a significantly higher rate than whites. Virtually all of the children who are transferred are boys. “We need to have race-explicit conversations about how we’re not perceiving the kid in kids of color,” says Taylor-Thompson. “First you have to change the public perception, then you can get to a legislative change.”
Despite growing calls to eliminate the use of cash bail, keeping criminal defendants in jail unless they put up money to assure their return to court remains a widespread practice in the United States. The inequities are manifest: Those with financial means go free, while the poor may remain behind bars, sometimes for years, until their cases are concluded. Studies have also shown racial bias in bail determinations. In 2016, the Washington Square Legal Services Bail Fund, founded and operated by NYU Law students and supported by charitable donations, opened with a mission declared on the fund’s website: Until cash bail is ended, the fund will aim to “subvert” it, posting bail for individuals charged with misdemeanors whose bail is set at $2,000 or less.
Increasingly, judges are using computer-generated assessment tools to help predict who might present a risk to the community or fail to return to court. Some say that a data-driven algorithm could counteract the human bias of an individual judge, but Vincent Southerland, executive director of the Law School’s Center on Race, Inequality, and the Law, sounds a note of caution. Bias can creep into the computer models because they draw on statistics that may be racially skewed (arrest records from over-policed black neighborhoods, for example). “The devil is in the data,” Southerland says. In May, New York City Mayor Bill de Blasio appointed Southerland to a task force that will assess equity and transparency in the city’s use of algorithmic tools.
Help with Bail
Last year, Robin Steinberg ’82, who co-founded New York’s first charitable bail fund in the Bronx in 2007, launched the Bail Project, which aims to use donated funds to provide bail for more than 160,000 people in 40 jurisdictions around the country by 2022.
Only a tiny percentage of criminal cases (3 to 5 percent, depending on jurisdiction) go to trial; nearly all the rest conclude with a guilty plea. But lurking behind many plea negotiations—at least when a defendant is adequately represented—is the prospect of a trial, and that means taking stock of how strong a case can be made to a judge or jury.
Professor Erin Murphy, a onetime public defender, has devoted much of her scholarship to the fairness and reliability of evidence that prosecutors seek to present in trials. DNA evidence has been a particular focus, and in her 2015 book, Inside the Cell: The Dark Side of Forensic DNA, she explores technical challenges posed by crime scene DNA, as well as privacy concerns raised by law enforcement use of DNA databases. A law review article of hers that looked more broadly at “second-generation” scientific evidence—including data mining, biometric scanning, and location tracking—has been cited twice by the US Supreme Court. And in testimony before the New York State Assembly last year, she offered suggestions on ways to improve government oversight of forensic testing laboratories.
Earlier this year, when California police arrested Joseph DeAngelo, the alleged “Golden State Killer,” Murphy took to Twitter. The police had uploaded crime scene DNA to a public genealogy website and tracked down DeAngelo through familial DNA. Using this novel technique to try to locate a serial rapist and murderer, Murphy tweeted, “is both totally understandable and totally fraught.” Among the issues she discussed in a tweet thread was whether the police had violated the Fourth Amendment, in which case a court might suppress the evidence at trial.
A Defense Guide
The American Law Institute (ALI) has published the sixth edition of Trial Manual for the Defense of Criminal Cases, a 1,200-page guide running from arrest to parole, coauthored by Professors Anthony Amsterdam and Randy Hertz (above). Public defenders may contact ALI to request an electronic copy at no charge..
A decade into the 21st century, federal prisons were at a bursting point—more than 30 percent over capacity. That led the US Sentencing Commission to examine sentences for drug offenders, a huge proportion of those incarcerated; it concluded that sentencing guidelines could be reduced without diminishing public safety. Professor Rachel Barkow—named to the commission by President Barack Obama—and her fellow commissioners unanimously voted this change into effect in 2014. The amended guidelines lowered time behind bars for those convicted in new drug cases and, because they were retroactive, reduced sentences for more than 31,000 people by an average of more than two years.
Another path to reducing sentences for those already serving time opened in 2014 when the Obama administration announced an initiative to encourage qualified individuals to petition to have the president commute their sentences. Barkow’s Center on the Administration of Criminal Law established a “pop-up” law office, funded by the Open Society Foundations, to assist petitioners with the process. Between 2014 and 2016, 96 people who were assisted through Barkow’s center—many of whom had been serving life sentences for nonviolent drug offenses—won clemency.
While he was a federal district judge in Brooklyn from 1994 to 2016, John Gleeson was an outspoken advocate for sentencing reform. He has also taught a sentencing seminar at the Law School for years, and will do so again in Spring 2019. Now a partner at Debevoise & Plimpton, Gleeson has this advice for current judges: “When they see injustices, they [should] say something about them so the people who can provide the remedy, whether they are prosecutors or legislators or other policymakers, can do something about them.”
Sidebar: Post-Conviction Challenges
During its 2018–19 term, the US Supreme Court will consider this question in Madison v. Alabama: Does the Eighth Amendment permit a state to execute a prisoner whose dementia leaves him with no memory of committing a capital offense or understanding of why he is being executed? Madison is among the scores of capital cases in which Professor of Clinical Law Bryan Stevenson and his fellow Equal Justice Initiative (EJI) attorneys have brought post-conviction challenges. To date, they have overturned convictions or death sentences for more than 135 death row prisoners—case-by-case steps in service of what Stevenson says should be the ultimate goal: elimination of capital punishment. The reasons to do so—outlined on EJI’s website
—include substantial racial disparities in its administration and a “shocking rate of error” in convictions. Since 1973, 162 people have been released from death row after evidence was uncovered to exonerate them, according to the Death Penalty Information Center. As Stevenson has pointed out, for every nine people executed, one innocent person has been exonerated.
Among Stevenson’s most-heralded accomplishments are his US Supreme Court victories in cases involving punishment of juveniles. In decisions issued in 2010 and 2012, the Court invalidated all life-without-parole sentences for juveniles convicted of nonhomicide offenses and mandatory life-without-parole terms for children convicted of homicide. But those rulings weren’t the end of the story. People in prison under now-invalidated sentences require new sentencing hearings, and EJI has been representing individuals in those proceedings around the country.
During its most recent session, the New York legislature considered a bill to curtail the use of solitary confinement in state jails and prisons. The Solitary Confinement Project (SCP), an NYU Law student group, partnered with an outside advocacy organization to advance the reform, holding an on-campus event and collecting signatures for a petition in support of the legislation. SCP operates as part of the Prison Reform and Education Project (PREP), a broader student initiative devoted to helping the incarcerated. Each semester, PREP students go to local prison libraries and classrooms to teach legal research skills. “No one knows the impact of the criminal legal system better than the people who have experienced its effects firsthand,” says Victoria Wenger ’19, chair of PREP during the last academic year. “If we, as members of the legal community, are going to address the systemic issues that fuel mass incarceration, we have to work hand-in-hand with the people who survive it.”
“Mass imprisonment” (now “mass incarceration”) was coined and defined by Arthur T. Vanderbilt Professor of Law David Garland. Its two essential features, he wrote in 2001, are:
1. “Sheer numbers… a rate of imprisonment and a size of prison population that is markedly above the historical and comparative norm.”
2. “The systematic imprisonment of whole groups of the population. In the case of the USA… young black males in large urban centres.”
Criminal records “have migrated from their birthplaces in law enforcement…to every nook and cranny of society,” Professor James Jacobs writes in his 2015 book, The Eternal Criminal Record. “A
person’s criminal record,” he notes, “is a more easily accessible ‘credential’ than his or her educational record and employment history.” This can present enormous obstacles for offenders trying to reenter society, often putting such things as jobs, housing, and credit out of reach. In some cases, discrimination is enshrined in laws, such as those denying people with criminal records access to food stamps, student loans, and the right to vote. “Reform should start with the principle that it is not desirable or justifiable for the government to inflict further punishment via collateral consequences on the convicted defendant after the sentence has been served," Jacobs says.
Helping the recently incarcerated reintegrate is one focus for students in the Criminal Defense and Reentry Clinic co-taught by Professors Kim Taylor-Thompson and Anthony
Thompson. This may involve assisting an individual to navigate state vocational licensing requirements—for becoming a security guard, for example. Students in the clinic may also examine and advocate for reform of criminal justice policy in New York, often in collaboration with community groups. An article co-authored by Anthony Thompson in the NYU Review of Law and Social Change calls on defense attorneys at the beginning of a case to consider reentry challenges a client may ultimately face—part of an approach known as “holistic” representation. “The problems posed by reentry,” the article notes, “are complex and necessarily demand multidimensional strategies.”
A Path to Law School
Joel Rudin ’78, with support from students and other alumni, has endowed the new PREP scholarship, named for the student-led Prison Reform and Education Project. It will allow formerly incarcerated individuals or those whose parents have been incarcerated to attend NYU Law.
Posted September 4, 2018
Michael Orey is public affairs director for the Law School.